The LGBT Issue: Every Photographer Must Decide

In Marketing/Business by Jim Harmer

Important Note: Improve Photography is not a partisan political tool.  We're one of the largest photography communities on the web and represent photographers from all different political, religious, cultural, racial, and other backgrounds.  I, Jim Harmer, am the author of this content but I spent a significant amount of time carefully writing it in the most neutral way possible.  This article has zero intention of stirring up political debates or expressing my own.  The goal is merely to make photographers aware of the issue and how it impacts us as human beings and photographers.  I'll let you decide where you stand.

Nearly 20 U.S. States have laws on the books which claim to protect religious freedom by allowing service providers, such as photographers, to choose not to participate in events which violate their religious beliefs.  Recently, Indiana and Arkansas also proposed similar measures, which was met with both vehement opposition and staunch support.  Proponents of the law call it a protection of the freedom of religion, and opponents call it open-season for discrimination.

Whether you like politics or hate them, are religious, are irreligious, gay, straight… every photographer must decide where they stand on this issue.  Why?  Because failing to understand the law in your state, city, and country could bring massive penalties to you as a photographer.  On the other side of the coin, the issue impacts many LGBT Americans and their ability to hire service providers freely and to prevent discrimination based on sexual orientation.

In short, photographers must choose between two options, which I will frame in as neutral a way as I can:

  • Members of the LGBT community should be protected from discrimination from photographers who do not want to photograph their wedding on religious grounds
  • Photographers should have the right to refuse to photograph an LGBT wedding if the photographer feels that doing so would be a violation of his or her moral judgment on religious grounds

Can Photographers Legally Refuse to Photograph an LGBT Wedding If It Violates Their Religion?

This is a difficult question.  Very few states have fleshed this question out to give a clear answer to photographers.  As an all parties on both sides of this issue, I spent a significant amount of time researching laws in each of the 50 U.S. States and made a call on each state of whether or not religious freedom would be a valid defense to refuse an LGBT wedding.  Again, I am not writing in support of or opposition of either side, but merely to provide the information.

These are my personal opinions as to how the law would come down on the issue in each of the states.  Again, the laws are far from clear in all but a few states.

Further, remember that this is only state law.  Many cities are now enacting their own laws.  For example, Bozeman Montana has a city ordinance preventing discrimination based on sexual orientation in public accommodation (which likely applies to photographers) but there is no similar state law.

This is probably the worst legal work I've ever done as a lawyer.  VERY few states have clear laws one way or the other and most would depend on the specific facts and the judge.  However, this is my best approximation as to the current situation across the United States.

Yes, I recognize that the map maker misspelled KanZas and ArkanZas, but it made me laugh so I kept it on there 🙂 This is probably the worst legal work I've ever done as a lawyer. VERY few states have clear laws one way or the other and most would depend on the specific facts and the judge. However, this is my best approximation as to the current situation across the United States.

Examples of Photographers and Other Service Providers Who Have Faced This Issue

  • Photographer Elane Huguenin was sued by an LGBT client in New Mexico when she refused to photograph their wedding.  The photographer felt that photographing the LGBT wedding would be a violation of her religious beliefs.  New Mexico's human rights commission fined the photographer $6,697.34 for her refusal.  The NM State Supreme Court affirmed the decision and SCOTUS denied cert.
  • Sweet Cakes by Melissa was sued by an LGBT client when she refused to bake a wedding cake for the same-sex union.  The issue is not fully resolved, but Oregon state law seems to favor the LGBT client.  The business faces penalties of up to $150,000.  This Youtube video has more information from the service provider's point of view.
  • Urloved Photography in northern California was forced to shut down their business after refusing service to an LGBT couple and referring the couple to another photographer.
  • A police officer in Salt Lake City was suspended when he refused to participate in a motorcycle brigade at a gay pride parade.  The duty would have required the officer to participate in choreographed maneuvers to add excitement to the event, which he felt was counter to his religious beliefs.
  • A Kentucky Tshirt printing business lost its battle arguing it should not have to print shirts for a gay pride parade, when the owners felt it would be a violation of their religious beliefs
  • There are dozens–or hundreds–of other examples that could be included here.

What Do Religious Freedom Laws Actually Say?

Each of the 20 states which have these religious freedom (RFRA) laws write them differently.  The first of its kind is a federal law called the Religious Freedom Restoration Act.  The act “gave religious objectors a statutory presumptive entitlement to exemption from generally applicable laws (subject to strict scrutiny). Government may substantially burden a person’s exercise of religion only if it demonstrates that application of the burden to the person . . . is the least restrictive means of furthering [a] compelling governmental interest.'” (Volokh)

What does that mean?  It basically means a photographer who has a religious objection to a law that prevents discrimination can be exempted from certain aspects of the law that would violate his or her religious freedom.  Importantly, the federal law was in response to federal action against individuals, such as in Employment Division v. Smith (Native Americans fired from job for peyote use in religious ritual were denied unemployment from the government).

Many states have since enacted their own versions of the RFRA.  Each differs in how it is applied, but few apply to conduct between private individuals.  Most are protections for religious belief defenses against government actions.

The Indiana law which is so hotly contested now is slightly more reaching.  It specifically states that religious objections can be used “as a claim or defense in a judicial or administrative proceeding, regardless of whether the state or any other governmental entity is a party to the proceeding.”

States with Religious Freedom Laws in Place: Alabama, Arizona, Arkansas, Connecticut, Florida, Idaho, Illinois, Indiana, Kansas, Kentucky, Louisiana, Mississippi, Missouri, New Mexico, Oklahoma, Pennsylvania, Rhode Island, South Carolina, Tennessee, Texas, Virginia.

Understanding the Issue from Both Sides

So now is the time for your thoughts, photography community… Should photographers be legally protected from photographing an LGBT wedding if doing so would violate his or her religious beliefs?

 


About the Author

Jim Harmer

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Jim Harmer is the founder of Improve Photography, and host of the popular Improve Photography Podcast. More than a million photographers follow him on social media, and he has been listed at #35 in rankings of the most popular photographers in the world. He blogs about how to start an internet business on IncomeSchool.com..